CHAPTER 5.
A global Perspective on
Mining legislation
Diana Dalton
The laws relating to the exploration for and mining of miner-
als, although often different in approach from one country to
the next, do have similarities. The purpose of this chapter is
to advise the reader of what approaches may be found in the
international context and what they mean for the practitioner.
No mining law can be read in isolation. Many other laws
impact mining operations and can affect the way a mining
law is implemented administratively. In developed countries,
the law has progressed over the last three centuries, changing
in approach as new issues, technologies, and practices have
evolved. In this environment, good practice exists, and change
is addressed in the normal course of events by highly trained
experts. However, in developing countries, such experience is
usually lacking.
This uncertainty in dealing with sophisticated mining
entities and expertise can be frustrating for companies but is
understandable. It is important to recognize this and be will-
ing to take time to transparently explain what is required. It is
also important to understand the social, economic, and politi-
cal environment in the country where mining operations are
to occur.
CoMMon lAW AnD Civil lAW
Two systems of law exist in various forms: common law and
civil law. Most of the world’s large mining companies are
headquartered in countries that practice common law but often
run operations in countries that practice civil law. It is impor-
tant to know what type of legal system applies in the country
where the applicant is planning to work in order to understand
the laws and regulatory system.
Common law is generally called English or British law
and is the system one finds in British Commonwealth coun-
tries as well as the United States. A common law system is
based primarily on custom (before there were written laws).
Although much of common law has been codified, these cus-
tomary laws continue to be applied by the courts. For instance,
the United Kingdom does not have a written constitution but
has a series of laws, agreements, and judicial decisions that set
out the fundamental rights of citizens. Most other common law
countries have written constitutions and statutes that encom-
pass these common law principles and legal approaches. In
Diana Dalton, Lawyer and Independent Consultant in Mining Law, Halifax, Nova Scotia, Canada
331
a common law system, although the statutes are a primary
source of the law, judicial interpretation and stare decisis
(precedent) in case law co-exist as important elements of legal
interpretation. In civil law systems, judges may look to other
legal decisions but are not bound by them.
A civil law system is based on statutory law made by
a legislature with regulatory powers given to the executive.
Treaties, orders, decrees, and other such documents are also a
part of the written law. Everything is written, and judges apply
the law; they do not interpret it. Civil law is the system found
in South America, Europe (except for the United Kingdom and
those parts of Africa that are not part of the Commonwealth),
and Asia. The civil code systems are French (Napoleonic),
German, Scandinavian, Portuguese and Brazilian, Dutch,
and Chinese. Each has a different approach to lawmaking.
Although Brazil has transitioned to a German type of civil
law, Quebec and Louisiana have French civil code systems
(except for criminal law which is national codified law). Both
Scotland and South Africa employ a mixture of civil law and
common law. Japan, South Korea, and Taiwan are based on
the German civil law system.
The difference in the two legal systems is important to
understand, especially when it comes to disputes regarding
agreements, which will be discussed later in this chapter.
WhAT iS A Mining lAW?
The words mining law and mining code are often used. They
can be one and the same thing or totally different. Mining code
most often refers to all the laws, regulations and guidelines,
and agreements pertaining to exploitation of minerals. Thus
the term encapsulates all the relevant legal documents that
oversee that activity.
Mining law stems from property law. It is similar to land
laws in which an owner of a property leases it to another who
uses it for his or her purposes in return for payment for that
use. So a mining law should determine
• Who owns the mineral resources;
• Who issues leases;
• How the rights will be allocated and what terms and con-
ditions apply to those rights;
• How the resource is to be treated;